RENDERED: SEPTEMBER 22, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0351-DG

JUNE MCGAHA AND MARK MCGAHA APPELLANTS

ON REVIEW FROM COURT OF APPEALS

NO. 2019-CA-1752

RUSSELL CIRCUIT COURT NO. 14-CI-00364

V. 

SUZANNE MCGAHA AND CLIFFMAN MCGAHA APPELLEES

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSING

Appellants bring this appeal to challenge a decision of the Court of 

Appeals that reversed the circuit court’s order in a will-contest case denying

Appellees’ motion for leave to file an amended answer to assert a cross-claim 

and dismissing the underlying case. The Court of Appeals remanded the 

matter back to the circuit court for further proceedings, holding that the circuit 

court erred in denying Appellees’ motion for leave to amend. 

On discretionary review, we reverse the Court of Appeals’ decision for 

failing as a reviewing court to give proper deference to the trial court’s decision 

to deny Appellees leave to amend a pleading. In reaching this holding, we also

hold that the Court of Appeals erred when it found that the district court

lacked jurisdiction to probate the will at issue in this action. Accordingly, we 
2

reverse the opinion of the Court of Appeals and reinstate the circuit court’s 

order dismissing this action.

I. FACTS AND PROCEDURAL BACKGROUND

At the time of his death, Leon McGaha was married to June McGaha, his 

second wife. Leon1 had three adult children from his first marriage, Mark, 

Damon, and Suzanne McGaha, and a grandson, Cliffman “Cliff” McGaha. 

In September 2013, Leon, who was in failing health, executed a Durable 

Power of Attorney (DPOA) naming June and Mark his attorneys-in-fact. 

According to some family members, Leon expressed a desire upon his passing 

to divide his estate equally among his grown children. 

 On April 3, 2014, Leon executed a will nominating June and Mark as 

co-executors of his estate. The will gave Leon’s tire business, including real 

and personal property associated with it, to Mark. June was to receive the 

residence and farm where she and Leon lived, a farm bank account, and some 

personal property. The will bequeathed to Suzanne and Cliff part of the 

proceeds from the sale of cattle and some personal property. And the will made 

bequests for June’s children from a prior marriage. June, Mark, and Suzanne

shared equally under the will the division of the residual estate. Damon 

received nothing under the will.

1 We refer to each member of the McGaha family by his or her first name for 

clarity. 
3

On April 4, 2014, the DPOA was recorded. That same day, June, acting 

as Leon’s attorney-in-fact, conveyed the real property associated with the tire 

business to Mark and Mark’s wife. 

Leon died on April 7, 2014. In May 2014, the Russell District Court 

entered an order probating Leon’s will and appointing June as executor of 

Leon’s estate. The probate petition listed Mark and June as petitioners and 

provided contact information for attorney Matthew DeHart. The petition was 

not signed. June and Mark filed a fiduciary bond and filed an inventory and 

appraisement of Leon’s estate. 

In November 2014, Damon filed an action in Russell Circuit Court 

challenging the validity of Leon’s will and asserting claims of undue influence 

and breach of fiduciary duty by June and Mark. He also named other 

defendants in the complaint, including Suzanne and Cliff. Damon contended 

that the probate petition was defective because it was neither signed nor 

verified, among other reasons. Damon requested a declaration that the will 

was invalid, an accounting of estate assets, and the setting aside of certain 

transactions. 

Suzanne and Cliff filed a joint answer to the complaint. They asked the 

trial court to protect their interests under the will and asked the trial court to

declare that they did not violate any provision of the will, including the nocontest clause. The joint answer did not expressly assert any cross-claims or 

counterclaims. 
4

In 2017, Suzanne and Cliff filed a motion for partial summary judgment 

against June and Mark. Specifically, the motion requested that the circuit 

court set aside the transfer of the real estate related to the tire business and an 

allegedly premature transfer of a tractor to Mark; asked the court to order 

certain proceeds and personal property be returned to Leon’s estate; and 

sought the aid of the court to require Mark to account for all profits and 

receipts from the tire business since Leon’s death.

June and Mark responded to the motion for partial summary judgment, 

arguing, among other things, that Suzanne and Cliff lacked standing to seek 

relief because they had asserted no claims against June and Mark. Damon 

also responded, indicating his agreement with the arguments Suzanne and 

Cliff made in their motion. After a hearing, the circuit court denied the motion 

as premature.

 In August 2019, Damon settled his claims against June and Mark. A 

notice of dismissal acknowledging the settlement was filed with the circuit 

court by Damon’s counsel on August 1, 2019.2

On August 6, 2019, Suzanne filed a motion styled as a motion for leave 

to amend her answer and to assert cross-claims and her objection to a 

dismissal of the action. Cliff did not join Suzanne’s motion, but Suzanne 

2 In its opinion below, the Court of Appeals acknowledged that there was no 

dispute as to the filing of the notice of appeal but stated that it was neither provided 

with a copy of the notice of dismissal nor did the notice appear in the record. The 

notice of appeal appears in the record before this Court as Appendix 6 to Appellants’ 

principal brief. 
5

stated in the motion that neither she nor Cliff consented to dismissal of the 

action. An affidavit from Damon’s counsel was attached to Suzanne’s 

supporting memorandum in which Damon’s counsel averred that counsel 

signed a notice of dismissal based on representations from June and Mark’s 

counsel that June and Mark would delay filing the notice of dismissal, pending 

settlement negotiations with Suzanne and Cliff. In her tendered amended 

answer, Suzanne alleged that June and Mark tortiously interfered with a valid 

devise and breached fiduciary duties. She also sought a declaration that Leon 

lacked testamentary capacity and that June and Mark exercised undue 

influence. 

After several hearings on Suzanne’s motion for leave to amend, the 

circuit court took the matter under advisement without issuing any oral ruling. 

Then, on November 7, 2019, the circuit court issued the following order:

Comes the Court on the defendant, Suzanne McGaha's, Motion to 

Amend Answer and to add Crossclaim against the defendants, 

June McGaha and Mark McGaha. The Court having read the 

memorand[a] and briefs of the parties in support thereof and 

against the motion, and the Court being sufficiently advised, it is 

hereby ORDERED and ADJUDGED that Suzanne McGaha's 

motion is hereby OVERRULED and consequently, as a result, 

there are no other issues before the Court in this matter with the 

plaintiff having settled his claim, and therefore, this action is 

hereby DISMISSED AS SETTLED. This is a final and appealable 

order and there is not just cause for delay.

Suzanne and Cliff appealed. Noting the “terse” nature of the circuit 

court’s order, the Court of Appeals “presume[d] the trial court must have 

concluded that the cross-claim [Suzanne] wished to assert via amended answer 

was time-barred, given the five-year-plus age of the circuit court action.” 
6

Importantly, the Court of Appeals concluded that the district court lacked 

jurisdiction over the probate of Leon’s will because the probate petition was not 

properly verified. Consequently, the Court of Appeals reasoned that the statute 

of limitations had not begun to run on Suzanne potential claims so that the 

trial court—presumably acting under the mistaken impression that Suzanne’s 

claims were time barred—abused its discretion by denying Suzanne’s motion to 

amend to assert her claims.

We granted June and Mark’s motion for discretionary review and this 

matter is ripe for our review. 

II. STANDARD OF REVIEW

Jurisdiction is a question of law that we review de novo.3 “Though CR4

15.01 provides that leave to amend “‘shall be freely given when justice so 

requires,’ it is still discretionary with the trial court[.]”5 As such, we review the 

trial court’s denial of a motion for leave to amend for abuse of discretion.6 

Finally, when reviewing a motion to dismiss, “the pleadings should be 

liberally construed in the light most favorable to the plaintiff, all allegations 

being taken as true.”7 This eliminates the need for the trial court to make any 

3 Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018).

4 Kentucky Rule of Civil Procedure.

5 Graves v. Winer, 351 S.W.2d 193, 197 (Ky. 1961) (quoting CR 15.01).

6 See id.; see also Bank One, Ky., N.A. v. Murphy, 52 S.W.3d 540, 550 n.5 (Ky. 

2001) (Keller, J., concurring in part and dissenting in part); Bowling v. Commonwealth, 

981 S.W.2d 545, 548 (Ky. 1998) (“A trial court's ruling on a motion to amend will not 

be disturbed on appeal unless there has been a clear abuse of discretion.”).

7 Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Morgan v. Bird, 289 

S.W.3d 222, 226 (Ky. App. 2009)).
7

findings of fact; “rather, the question is purely a matter of law. Stated another 

way, the court must ask if the facts alleged in the complaint can be proved, 

would the plaintiff be entitled to relief?”8 As such, a reviewing court owes no 

deference to the trial court’s determination and reviews a motion to dismiss de 

novo.9

III. ANALYSIS

This case raises three primary issues for this Court’s consideration: (1) 

did the district court lack jurisdiction over the probate action because of the 

alleged deficiencies with signatures and verification of the probate petition; (2) 

did the circuit court abuse its discretion by denying Suzanne’s motion for leave 

to amend her answer to add new claims; and (3) did the circuit court err in 

dismissing this action? We address each issue in turn. 

A. The Court of Appeals erred in concluding that the district court 

lacked jurisdiction over the probate matter because of an alleged

defect with verification of the probate petition. 

Jurisdiction may well be a word of too many meanings.10 At bottom,

“[j]urisdiction is power to declare the law, and when it ceases to exist, the only 

function remaining to the court is that of announcing the fact and dismissing 

the cause.”11

8 Id. (quoting James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002)).

9 Id.

10 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998).

11 Id. (quoting Ex Parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868)).
8

KRS12 24A.120 gives the district court subject-matter jurisdiction in 

certain civil and probate matters. KRS 24A.120 provides, in pertinent part:

District Court shall have exclusive jurisdiction in:

. . . 

2) Matters involving probate, except matters contested in an 

adversary proceeding. Such adversary proceeding shall be filed in 

Circuit Court in accordance with the Kentucky Rules of Civil 

Procedure and shall not be considered an appeal;

(3) Matters not provided for by statute to be commenced in Circuit 

Court shall be deemed to be nonadversarial within the meaning of 

subsection (2) of this section and therefore are within the 

jurisdiction of the District Court[.]

As a result, district courts are statutorily empowered with “exclusive” 

jurisdiction in non-adversarial probate matters. 

Here, the Court of Appeals held that the district court lacked jurisdiction 

to probate the will because the probate petition was unsigned and unverified. 

Citing Kentucky Unemployment Insurance Commission v. Wilson13 for support, 

the Court of Appeals concluded that strict compliance with the specific 

statutory requirement for verification was necessary to invoke the district 

court’s jurisdiction.14

But the Court of Appeals’ reliance on Wilson is an incongruous 

application of this Court’s precedent regarding verification and its effect on 

jurisdiction. In Wilson, this Court held that strict compliance with a statutory 

12 Kentucky Revised Statutes.

13 528 S.W.3d 336 (Ky. 2017).

14 See id. at 339.
9

requirement for verification for a petition for judicial review was required to 

invoke the circuit court’s jurisdiction to review an administrative ruling.15 But 

that legal conclusion in Wilson is grounded on the premise that “there is no 

appeal to the courts from an action of an administrative agency as a matter of 

right.”16 “When grace to appeal is granted by statute, a strict compliance with 

its terms is required.”

17 So our holding in Wilson applies to review of 

administrative rulings in which there is no appeal in the courts as a matter of 

right. As a result, Wilson provides no support for the Court of Appeals’ 

conclusion that the district court lacked jurisdiction in a matter unrelated to 

review of administrative appeals. 

Relevant here, KRS 24A.120(2) grants district courts exclusive jurisdiction

in non-adversarial probate matters. And the same statute requires that 

adversarial probate proceedings must be filed in the circuit court. So KRS 

24A.120(2) grants district courts jurisdiction over non-adversarial probate

matters; it does not, however, extend legislative grace to appeal where an 

appeal is otherwise not available as a matter of right.

It is true, of course, that KRS 394.145 requires that a verified petition be 

filed by a person offering a will for probate. But lack of proper verification of 

the probate petition did not divest the district court of subject-matter 

15 See Wilson, 528 S.W.3d at 339.

16 Id. (internal alteration and citation omitted).

17 Id. (internal citation omitted).
10

jurisdiction to entertain the petition to probate the will. The district court had 

subject-matter jurisdiction to probate the will under KRS 24A.120(2).

Nor did the alleged lack of proper verification divest the lower courts of 

jurisdiction over this particular case. We have acknowledged “that the use of 

the word ‘jurisdiction’ in this context is confusing.”18 In Spears v. Goodwine,

19

we clarified that “[t]he deficiency [of an unverified complaint seeking judicial 

review of an administrative order] has no effect on the circuit court's subject 

matter jurisdiction.”20 Instead, a deficiency in the verification of a complaint 

seeking judicial review of an administrative ruling leaves the “court without 

jurisdiction in this particular case.”21 

KRS 394.145 does not grant jurisdiction to the lower courts in probate 

matters. KRS 24A.120(2) does. That is not to say that the missing verification 

has no impact on lower courts’ consideration of a probate petition. Here, the 

lower courts had jurisdiction to consider issues related to verification of the 

probate petition. In fact, Damon raised this very issue—claiming that the 

probate petition was defective because it was not properly verified. Again, KRS 

24A.120(2) states that adversary proceedings involving probate matters “shall 

be filed in Circuit Court in accordance with the Kentucky Rules of Civil 

Procedure and shall not be considered an appeal.” As a result, the district 

18 See Wilson, 528 S.W.3d at 339 n.2.

19 490 S.W.3d 347 (Ky. 2016).

20 Id. at 352.

21 Id. (citation omitted).
11

court had jurisdiction to probate the will at issue here and the circuit court 

had jurisdiction to review the impact of the alleged ineffective verification of the 

probate petition on the probate proceedings.

22 Importantly, we note that 

Damon properly filed this original action in circuit court to challenge the 

district court’s decision to admit the will to probate.23

Ultimately, the Court of Appeals’ conclusion that the district court lacked 

jurisdiction to probate Leon’s will was error. Indeed, the Russell District Court 

had exclusive jurisdiction over any non-adversarial proceedings involving 

probate. And the circuit court had jurisdiction over any adversarial 

proceedings, including whether the probate petition was properly verified. As 

such, we reverse the Court of Appeals’ holding that the district court lacked 

jurisdiction in this matter based on the allegedly ineffective verification of the 

probate petition.

B. The circuit court did not abuse its discretion by denying Suzanne’s 

motion for leave to amend her answer to assert cross-claims. 

We cannot conclude that the trial court clearly erred by denying 

Suzanne’s motion to amend her answer. While it is true that leave to amend 

22 See Vater v. Vater’s Adm’rs, 113 S.W.2d 1145, 1146 (Ky. 1938) (“There is a 

rule of general application in this jurisdiction that an objection to a petition, answer, 

or other pleading for want of verification should be by rule against the pleader to verify 

and on his failure to do so to have it stricken.”). It is undisputed, however, that 

neither Suzanne nor Cliff objected to the alleged lack of verification until Suzanne 

attempted to amend her answer near the end of the proceedings in the trial court, 

years after Damon first raised this issue in his complaint.

23 KRS 394.240(1).
12

“shall be freely given when justice so requires,”

24 the decision on whether to 

allow an amendment to an answer is within the trial court’s discretion. 

Here, the Court of Appeals erred by failing to give appropriate deference 

to the circuit court’s ruling. The Court of Appeals concluded that the circuit 

court abused its discretion by denying Suzanne’s motion to amend because the 

statute of limitations had not begun to run, the original probate petition being 

defective. But in so doing, the Court of Appeals “presumed” to know—without 

actually knowing—why the trial court denied Suzanne’s motion for leave to 

amend and then proceeded to engage in its own de novo legal analysis

concerning denial of the motion for leave to amend. 

Having concluded that the district court had jurisdiction over the probate 

petition despite the alleged lack of proper verification, we must review the 

circuit court’s denial of Suzanne’s motion for leave to amend for abuse of 

discretion. “The test for abuse of discretion is whether the [ ] judge's decision 

was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.”25 

On this record, we cannot conclude that the circuit court clearly erred by 

denying Suzanne’s motion for leave to amend her complaint. In 2014, Suzanne 

and Cliff’s joint answer to Damon’s complaint expressly disclaimed any 

challenge to Leon’s will, stated that they did not join Damon’s challenge, which 

included a claim that the probate petition was defective because it was not 

24 CR 15.01.

25 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
13

properly verified, and did not assert any cross-claims or counterclaims. 

Seemingly content to sit on their rights and allow Damon to prosecute the 

alleged improper verification of the probate petition, it was years later, in 2017,

when Suzanne and Cliff moved for partial summary judgment. But neither 

Suzanne nor Cliff had asserted any cross-claims or counterclaims against June 

and Mark at that point. It was two years later, in 2019, and only after Damon 

reached extrajudicial settlement of his claims against June and Mark, that 

Suzanne sought to amend her initial answer to assert cross-claims that were 

available to her when she filed her initial answer in 2014. 

Of course, we acknowledge, as the Court of Appeals did, the circuit 

court’s November 2019 order was bare-bones. Even so, the circuit court was 

most familiar with the factual background and procedural history of this case. 

So the circuit court was best positioned to determine whether an amendment 

of Suzanne’s complaint served the interests of justice. On these facts, even if 

we might have reached a different conclusion on de novo review, we cannot 

conclude that the circuit court abused its discretion in denying Suzanne’s 

motion to amend her answer to assert cross-claims. 

C. Dismissal of this action was proper.

On de novo review, we hold that dismissal of this action was proper. The

circuit court’s November 2019 order ruled that this action was dismissed as 

settled and noted that there were no other issues remaining before the court for 

consideration. On August 2, 2019, Damon filed a notice of dismissal, which 

stated, in relevant part, as follows:
14

The Plaintiff acknowledges that the above styled action has been 

dismissed as settled and that this effectively rescinds the “Notice 

of Action Pursuant to KRS 394.240(2)” filed in the office of the 

Russell County Circuit Court Clerk on November 10, 2014[,] and 

same being recorded in Miscellaneous Records Book 21, Page 63 

and 64.

This is a notice that the previous filing is of no longer any force or 

effect in regard to any of the parties herein set forth above. 

CR 41.01 deals with voluntary dismissal of an action by the plaintiff. 

Since Damon’s notice of dismissal was filed after the defendants answered his 

complaint, the operative rule if CR 41.01(2), which states as follows:

(2) By order of court.

Except as provided in paragraph (1) of this rule, an action, or any 

claim therein, shall not be dismissed at the plaintiff's instance save 

upon order of the court and upon such terms and conditions as 

the court deems proper. If a counterclaim has been pleaded by a 

defendant prior to the service upon him of the plaintiff's motion to 

dismiss, the action shall not be dismissed against the defendant's 

objection unless the counterclaim can remain pending for 

independent adjudication by the court. Unless otherwise specified 

in the order, a dismissal under this section is without prejudice.

Here, dismissal of this action was proper because there were no active 

claims before the circuit court for consideration once Damon settled his claims 

against June and Mark. Again, Damon was the only plaintiff in this action as 

of August 2, 2019. That is so because Suzanne and Cliff expressly disclaimed 

any challenge to Leon’s will and chose not to assert any counterclaims or 

cross-claims in their initial joint answer to Damon’s complaint. And Suzanne 

did not file a motion to amend her answer to assert cross-claims until August 

6, 2019. As such, once Damon settled his claims with June and Mark, there 
15

were no remaining claims, counterclaims, or cross-claims for the circuit court 

to consider. 

It is of no moment that the circuit court denied Suzanne’s motion to 

amend her answer to assert cross-claims in the same order that dismissed the 

action. Again, we do not find that the circuit court’s denial of Suzanne’s 

motion to amend constituted abuse of discretion. Ultimately, upon denying 

Suzanne’s motion to amend her answer to assert cross-claims, the only claims 

were those brought by Damon in his initial complaint, which had been 

dismissed.

Nor does it matter that Damon’s counsel averred that he signed the 

notice of dismissal based on representations from June and Mark’s counsel 

that they would delay filing the notice pending settlement negotiations with 

Suzanne and Cliff. Under CR 15.01, Suzanne was permitted to amend her 

answer “only by leave of court or by written consent of the adverse party.” 

Suzanne had neither. So, upon settlement of Damon’s claims, there was 

nothing for the remaining parties to settle.

Finally, contrary to Suzanne’s characterizations, the claims she 

attempted to bring in her amended answer were not already before the court in 

her initial complaint. In their joint answer, Suzanne and Cliff asked the circuit 

court to generally protect their legal interests and declare the parties’ rights 

under the will. But these general recitations are insufficient to bring 

adversarial claims under Leon’s will, especially where Suzanne and Cliff 

initially explicitly disclaimed any challenge to the will. At bottom, in order to 
16

advance the claims she now wishes to bring, Suzanne had to receive leave to 

amend her answer.

We acknowledge that this may seem to be a harsh result, especially since 

leave to amend should be freely given when justice so requires. But parties 

who sit on their rights do so at their own peril. The cross-claims Suzanne 

sought to assert in her amended answer were available to her when she filed 

her first joint answer in 2014. Suzanne sought to amend her answer in 2019 

and only after Damon filed a notice of dismissal with the circuit court. As 

such, Suzanne’s delay in litigating her claims justifies both denial of her 

motion for leave to amend and dismissal of the action generally. 

In sum, once Damon’s claims against June and Mark were settled as 

demonstrated by the notice, there were no active claims left in this action. 

Upon denial of Suzanne’s later-filed motion to amend answer to assert crossclaims, there were similarly no active issues for the circuit court to resolve. As 

a result, dismissal without prejudice26 was appropriate under CR 41.01(2).

IV. CONCLUSION

After review, the district court properly exercised jurisdiction to probate 

the will in this action despite an allegedly improper verification of the probate 

petition and the circuit court had jurisdiction to consider adversarial claims 

arising from the probate action. Furthermore, we conclude that the circuit 

court did not abuse its discretion in denying Suzanne’s motion for leave to 

26 CR 41.01(2) (“Unless otherwise specified in the order, a dismissal under this 

section is without prejudice.”).
17

amend and assert cross-claims. Lastly, the circuit court properly dismissed 

this action because no claims remained for the circuit court to resolve upon 

settlement of Damon’s claims with June and Mark. As a result, we reverse the 

decision of the Court of Appeals and reinstate the circuit court’s order 

dismissing the action.

All sitting. All concur.

COUNSEL FOR APPELLANTS:

Matthew B. DeHart

COUNSEL FOR APPELLEES:

J. Robert Lyons, Jr.

Dinsmore & Shohl, LLP